Erin Tomasic had been a special assistant prosecutor in Kansas City, Kan., and came under increasing scrutiny in recent months as a federal judge ordered an investigation into whether law enforcement officials used prison recordings of inmates talking with their attorneys — conversations that are protected by law.

Federal prosecutors notified a judge on May 16 that Tomasic no longer works for the U.S. Attorney’s Office for the District of Kansas. That came six days after Tomasic told her supervisor she had listened to the recorded phone conversations of two Leavenworth Detention Center inmates and their attorneys, according to court documents filed June 19 by the U.S. attorney’s office.

Those court filings, signed by U.S. Attorney Tom Beall and two assistant U.S. attorneys, say they are meant to correct statements by Tomasic that “may be deemed misleading.”

The prosecutors describe in the documents how Tomasic told a federal judge in September — and for months allowed fellow prosecutors to believe — that law enforcement had not listened to recorded inmate-attorney phone calls obtained by prosecutors investigating contraband at the prison.

In fact, as Tomasic later revealed, she had listened to some of the recordings two months earlier.

“Tomasic expressed remorse for having listened to the defendant’s calls,” the federal prosecutors wrote. “And for not revealing this action sooner.”

Erin Tomasic

University of Kansas School of Law

Days after Tomasic left her job, U.S. District Judge Julie Robinson ordered a wider investigation into the U.S. attorney’s office in Kansas City, Kan., citing an ongoing problem with prosecutors’ “inconsistent, inaccurate or misleading statements.” Robinson found that government officials had destroyed “critical evidence” at an earlier stage of the investigation.

Many of the people held at the prison are defendants awaiting trial and have not yet been convicted.

Prosecutors pursuing the contraband case collected hundreds of recordings of inmates speaking with their attorneys, both on video and on the phone. Defense attorneys protested that those conversations are protected by the Sixth Amendment and attorney-client privilege, and that the prison had offered repeated assurances that they would be private.

Two Kansas City-area attorneys, Adam Crane and David Johnson, have sued CoreCivic and the prison’s telephone provider, Securus Technologies, accusing the firms of violating state wiretap laws by recording their conversations with clients.

Barry Pollack, president of the National Association of Criminal Defense Lawyers, said the recording of attorney-client conversations is a widespread problem at private prisons, which are not bound by Federal Bureau of Prisons prohibitions against it.

Examples of a federal prosecutor actually listening to or using the recordings, he said, are more rare.

“That is, to me, far more troubling,” Pollack said. “It goes to the very reason those conversations are protected.”

Details revealed

A court-appointed special master investigating the recordings reported that 188 attorney-client phone calls had been obtained from the prison by law enforcement, including 54 marked “private” that should not have been available.

For months, Tomasic and other prosecutors maintained that they took measures to avoid listening to those calls.

But in the court documents filed last week, federal prosecutors say Tomasic in July listened to multiple recordings of phone calls between Juan Herrera-Zamora, a man held at Leavenworth while facing drug charges, and his attorney.

Two months later, she listened to a recording of another inmate, Ashley Huff, speaking with her attorney.

When Herrera-Zamora’s attorney asked prosecutors if they had listened to his calls, the prosecutors said they had not. Beall and the other prosecutors wrote that they believed it was true, and Tomasic did not correct them.

Herrera-Zamora’s attorneys filed motions challenging his conviction, alleging that prosecutors had used the recordings against him.

For Tomasic to listen to the calls would run contrary to the U.S. attorney’s office’s stated practice of having officials unrelated to the case screen the calls to “avoid any appearance of impropriety.”

When a judge in September asked Tomasic if inmates had been notified of the recordings, she did not mention listening to the calls of Herrera-Zamora or Huff.

Tomasic said attorney-client calls had only been accessed in a few accidental instances, and that agents had stopped listening within 10 or 15 seconds.

Then, on May 10, Tomasic informed a supervisor that she had listened to the two inmates’ calls.

In a May 16 court hearing, the supervisor replaced Tomasic in court and told the judge that Tomasic no longer worked for the U.S. attorney’s office.

Federal Public Defender Melody Brannon has pushed for the court to investigate further Tomasic’s after-hours entry into the judge’s chambers.

In a motion seeking more investigation, Brannon wrote that a May 23 letter Tomasic sent to the court “raises serious factual disputes” with earlier accounts of the incident and carries implications for “the veracity of key players in this litigation.”

That request is still pending with the court, and the investigation by the special master continues.